This Essay, however, emphasizes an undertheorized and often overlooked issue that Citizens United, perhaps unwittingly, brings to the fore: the First Amendment rights of shareholders. The core of my argument is simple: the opinion all but ignores these rights, and in doing so, is a signpost in the march away from shareholder capitalism.

The argument is developed in two principal sections. Part I explores the fundamental problem in Citizens United—the oversized First Amendment rights bestowed upon organizations such as corporations and unions—and the thoughtful emerging critiques that have emerged in response to the majority’s bold language. Part II argues that shareholders, like union members, have First Amendment rights that are trampled upon if the corporation is given free rein to engage in political speech. It concludes by responding to three powerful critiques of the notion that shareholders should have free speech rights: corporate law already protects them, they can simply divest their holdings if they do not agree with the corporation’s speech, and corporations are not state actors against whom constitutional rights may be asserted.

Mapping the statute against these four facilitators, I argue that while a positive step forward in some respects, Dodd-Frank exhibits more of an intricate reaction to our last financial crisis than a concise attempt to address fundamental flaws in how Wall Street is regulated. To some degree, this might be unsurprising, given that regulators were reacting ex post to a crisis rather than averting it ex ante. Yet Dodd-Frank makes surprisingly few important decisions. Fascinatingly, along each of these four dimensions, the Act almost exclusively defers to agency rulemaking or the creation of new organizations.

The Article is structured into two principal sections. In Part I, I outline each facilitator and examine what a first principles-based response might encompass; then, I analyze what Dodd-Frank did. Each time, I find that while Dodd-Frank might contain some positive provisions, it ultimately fails to address the root causes of financial crisis. To the extent there is a mismatch between first principles and the legislation, Part II asks why sophisticated lawmakers would choose largely to defer these issues rather than confront them more simply and directly. While there are benefits to statutory vagueness and delegation to agencies and courts, the main factor underlying voluminous legislation that ironically postpones the major questions lies in the political economy of twenty-first century Congressional action and the jostling among interest groups. The Article concludes by suggesting that a path forward may lie in structural reforms pertaining to the legislative process.

The argument is structured into two principal sections. Part I argues that the opinion is truly unusual from a constitutional perspective. To begin with, it eschews the principle of constitutional avoidance, refuses to consider § 203 as a time, place and manner restriction, and pays precious little attention to stare decisis. Beyond these technical concerns, the majority’s opinion presents deeper constitutional issues: its bold rhetoric is divorced from First Amendment doctrines, other relevant constitutional provisions are ignored, and untested assumptions are proffered about money and speech, corruption, and corporate constitutional rights. By contrast, Part II suggests that the opinion is entirely unremarkable when viewed through the narrative of corporate law. By giving corporations the ability to use general treasury monies to fund political speech, the majority in Citizens United is privileging a class of corporate insiders in a manner consistent with corporate doctrines such as the business judgment rule. Moreover, the opinion’s depiction of voters as autonomous, rational, well-informed participants in political discourse has striking parallels to the manner in which corporate law idealizes shareholders.

The essay, structured in three parts, argues that though the new legislation represents a positive beginning, difficult work lies ahead. Part I suggests that there is much to applaud in the new legislation: it gives the SEC the authority to simplify and unify functionally similar financial services and thereby reduce investors’ confusion; moreover, it gets beyond the conventional contractarian rhetoric to interpose fiduciary protections for investors. Part II addresses two objections to making broker-dealers subject to a fiduciary standard: that sales activities are not fiduciary in nature and that brokers also acting as dealers and underwriters will be in conflict with their customers. Neither of these concerns is sufficient to eschew the fiduciary standard. Finally, Part III outlines the two practical issues that must be confronted if the fiduciary standard is to protect investors: its definition and enforcement.

The piece is structured into two principal sections. Part I provides a historical overview of the history of regulation in America, as well as two new paradigms that have emerged in regulatory theory: the regulation of bottleneck inputs, and cooperative federalism. Part II, the core of the Article, focuses on three controversial areas where the relationship between government and business has become problematic and is ripe for reform: corporate and securities law, antitrust, and constitutional law. In each area, I point to problems in current legal arrangements, and suggest a path to reform.

I argue that there are striking parallels between the powerlessness of the company’s shareholders and shareholders in today’s large corporations, along with a similar eerie ambivalence about the role government should play vis-à-vis troubled enterprises. The chapter is structured into two parts. Part I outlines the tumultuous history of the company, then discusses what lessons this disturbing saga holds for corporate governance and shareholder advocacy. Part II focuses on the epic battle that emerged in the late 1760s surrounding the role of government in private enterprise, arguing that this struggle highlights the importance of intellectual fashions, public relations, and hidden agendas. In the end, it argues that the demise of the company should not be altogether surprising given the bargain the company had made, since its inception, with the state.

While I applaud Professor Gopalan for his courage, however, I find his thesis uneasy. This Essay summarizes my reactions, and is structured into three principal sections. Part I addresses some minor difficulties I have with the article. Part II seeks to get beyond these relatively small quibbles to argue that the article’s overall theoretical framework is implausible: it delimits a category of offenses that is both narrow and unclear at the same time, falls prey to commodifying human behavior through a rational actor model, and fundamentally offers anemic remedies. Part III concludes by arguing that the Article’s case study is ultimately unconvincing.

This Article argues that this struggle can be overcome through a more robust, less anemic conception of antitrust that is willing to confront conscious parallelism. It is structured into three parts. After delving into some detail about what conscious parallelism is, Part I argues, contrary to the conventional wisdom, that current antitrust law is flexible enough to address such behavior—be it through the Sherman, Clayton, or Federal Trade Commission (FTC) Acts. Part II discusses what light microeconomics might shed on the problem. In particular, it focuses on the central and thorny question of how to distinguish between whether the parallelism is due to competition or tacit coordination. It argues that while current incarnations of game theory leave much to be desired, a renewed focus on the Structure-Conduct-Performance (S-C-P) paradigm of industrial organization, combined with careful econometric studies, can help reveal where conscious parallelism lies and where it does not. Several examples are offered to buttress the argument. Finally, Part III argues—again, contrary to mainstream antitrust thinking—that a range of effective remedies does indeed exist to address conscious parallelism.

The argument is structured in three parts. Part I explores the limitations of conventional models: neoclassical economics, industrial organizatio (IO), and institutional economics. It also explores why the behavioral project – whether expressed through behavioral economics or organizational behavior (OB) – is incomplete. Based on the notion of “organizational behavioral economics,” Part II then proposes a structure within with to understand board behavior using the concept of norms. Finally, Part III presents suggestions for reform, with an emphasis on enhancements to corporate and criminal law.

The article proceeds in three parts. Part I offers a brief overview of the book. Part II highlights the significant strengths of Croley's endeavor. Finally, Part III suggests some possible gaps in the book's arguments.

This Article takes a different approach by discussing the political economy of commercial speech. It asks whether the recent push toward broader protections for commercial speech represents a very sophisticated attempt at putting forth a deregulatory agenda through constitutional rhetoric - a role similar to that the due process and contract clauses occupied nearly a century ago. To the extent that an overly expansive commercial speech doctrine is used to discredit agency regulation, it represents a brilliant attempt to sidestep the deference courts give regulators under Chevron.

The argument is structured in two parts. Part I suggests that two movements, the Chicago school and public choice, have given intellectual legitimacy to the push for expanded commercial speech protections. Unfortunately, however, this agenda is flawed along two major dimensions. First, it glibly conflates commercial speech with core political speech at the heart of the First Amendment. Second, it suffers from a host of facile and untenable assumptions about rational consumers, self-correcting markets, and good corporations versus bad governments. The agenda is to use the First Amendment to sidestep economic regulation, much like the Lochner era relied on Fourteenth Amendment due process claims.

Part II explores six curious anomalies that fuel the agenda described in Part I. These represent leaps of logic that are made seemingly without justification. Puzzles that, conveniently enough, benefit those who wish to grant ever-expansive rights to commercial speech. First, there is an inconsistent willingness to attack certain regulatory regimes, but not others. Second, corporations are simply assumed to have constitutional rights. Third, the rhetoric bizarrely shifts attention away from speakers toward listeners and information. Fourth, there is a permissive attitude toward mixing political with commercial speech, thereby sidestepping even the minimal requirement that commercial speech not be false or misleading. Fifth, there is an unwillingness to ask why a government that can regulate an underlying commercial transaction might not be able to regulate speech promoting that transaction. Finally, there is a strange desire to defer to courts as frontline arbiters of economic policy, thereby sidestepping Chevron deference.

On the positive side, Shavell has written a lucid text that is accessible yet does not shy away from masterful exposition of complex topics such as externalities, informational asymmetries, and the divergence between private and social welfare. The review's critique, however, focuses on the notion that Shavell unnecessarily cabins welfare economics within a neoclassical and utilitarian box. In placing too much faith in the ability of the tax and transfer system to achieve distributional goals, and in eschewing deontological concerns, he too often ends up resorting to wealth maximization - ironically, the very method he chastises conventional law and economics scholars for adopting.

In the end, Professor Shavell treats readers to an immensely informative, enjoyable, and thought-provoking book. However, had the book not remained wedded to the limits of neoclassicism and utilitarianism it would be even better.

First, the piece attempts to link antitrust's modern woes to two root causes: predominantly laissez-faire economics and limited institutions. Influential commentators have falsely defined antitrust's consumer welfare goal according to the strictures of neoclassical price theory, while ignoring antitrust's legislative history. In parallel, they have dismissed valuable modern advances in economics. Institutionally, ex post common law adjudication is ill equipped to set economic policy.

Next, the piece lays the groundwork for its proposal. Taking issue with public choice arguments, it posits that despite antitrust's current failings, government intervention is essential to protecting the integrity of markets. Also, as economic regulation has evolved it no longer makes sense to treat antitrust and regulation as separate bodies of doctrine.

Finally, the Article outlines the economics and institutions of a new competition law. Its economics must rest on empirical and behavioral reality. The goal should be to emulate a monopsonist consumer. Analytical methods must emphasize three elements: structural industry analysis, pragmatic market definitions, and isolation of bottlenecks to competition. A cross-industry Competition Office of limited powers should implement the approach. The ultimate goal is to preserve the integrity of markets; a happy by-product is the reconciliation of antitrust and regulation.

On the positive side, Hylton has written a lucid text that fruitfully analyzes antitrust from both a legal and a traditional economic perspective. The review's critique, however, is two-fold. First, while the book does initially lay out some of the limitations of the neoclassical economic paradigm, it ends up not paying sufficient attention to new research in economics that casts doubt on the plausibility of traditional Chicago School law and economics. Second, Professor Hylton ultimately does not take advantage of several opportunities to critique the limitations of the common law in shaping antitrust and thus suggest how competition law might develop in the future.

In the end, Antitrust Law is an extremely versatile, valuable and highly recommended book. It is an excellent text for readers who wish a cogent description of antitrust as an evolving form of common law, peppered with an insightful discussion of traditional law and economics. Those wishing sustained engagement with cutting-edge economics research or the articulation of a vision for the future of antitrust, however, will be left wanting more. Some readers might wish that Professor Hylton could offer a more critical perspective on neoclassical economics as well as on the limitations of the common law in setting competition policy. Doing so would have permitted him to address head on some of the most vibrant controversies facing antitrust today. Instead, he has preferred to weave a compelling narrative of antitrust's evolution.

The focus is to explore how these new concepts, taken together, can create a mechanism with which to explore developments in administrative law. The piece first builds a theoretical argument as to how regulatory largesse can subtly create a right for a small number of entities to exclude others, thereby squelching business competition and social diversity. A variety of examples from telecommunications law, local government law, natural resources law, and intellectual property law adds empirical weight to the argument.

Next, the root causes of this phenomenon are explored. Public choice theory and the public interest rhetoric, while providing valuable insights, cannot offer a satisfactory explanation. Ideas from transaction cost economics and behavioral economics also shed light on why conventional solutions to the dilemma - grouped around the polarities of privatization and public commons creation - are inadequate.

The article concludes by offering an approach with which to reform administrative law. Central to change are reconceptualizations of the public trust doctrine, property versus liability rules, and the public/private distinction.

The argument is structured in three parts. Part I simply seeks to understand what transnational law actually means, by developing a typology that systematizes not only sources of law, but actors engaged in cross-border events. Part II attempts to draw three principal lessons from this reality: (i) transnational law for all of its glamour, is often little more than national law applied to cross-border events; (ii) forays beyond the national have too often been either been ineffectual or perceived as disenfranchising; and (iii) the transnational approach is being hampered by its reliance on liberalism and process theory.

Part III argues for a counterintuitive and ironic proposition: comparatists may provide a path forward for transnationalism. The comparative method presents precisely the tools that lead to a deeper understanding of the similarities and differences among national laws, and between national laws and other constructs such as supranational and international law. Only through understanding this reality can we begin to renew our justifications for the legitimacy of meaningful international law and institutions.